Legislature(2001 - 2002)
04/24/2002 01:12 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 140 - PLACE GHB IN SCHEDULE IA [Contains reference to HB 297.] Number 1355 CHAIR ROKEBERG announced that the next order of business would be HOUSE BILL NO. 140, "An Act relating to gamma- Hydroxybutyrate." Number 1335 SHARALYN "SUE" WRIGHT, Staff to Representative Mike Chenault, Alaska State Legislature, offered on behalf of Representative Chenault, sponsor, that HB 140 would move gamma-Hydroxybutyrate (GHB) from schedule IVA to schedule IA in AS 11.71; such a change would increase the penalties for possessing GHB. [Reclassifying] GHB, commonly know as the date rape drug, will conform to the federal schedules for this drug. She explained that statewide, hospitals and schools have seen an upsurge in the use of GHB, which is used to incapacitate a person during a sexual encounter such that he/she cannot remember the event. She noted that GHB has only one legitimate use, that being for the treatment of narcolepsy. She mentioned that there is "an orphan medical company" in Duluth, Minnesota that is seeking approval from the Food and Drug Administration (FDA) for such use of GHB, although none of the doctors from the Kenai area with whom she spoke use GHB for any purpose. REPRESENTATIVE MEYER mentioned that he has legislation pending - HB 297 - that would make the use of drugs such as GHB an aggravating factor in sentencing. In comparison, he remarked, HB 140 would make mere possession of GHB a crime. MS. WRIGHT reiterated that HB 140 simply moves GHB from schedule IVA to schedule IA, and that this change would increase the penalties and bring Alaska's schedules in line with federal schedules. REPRESENTATIVE MEYER asked why HB 140 only addresses GHB, when other "date rape drugs" are also being used. MS. WRIGHT indicated that because a physician and a nurse in the sponsor's district "were seeing [GHB] being used" and because currently there is no [quick] test that can confirm the presence of GHB in a person's bloodstream, GHB became the focus of HB 140. She relayed that according to the federal drug schedule, possession of GHB is treated much more seriously than other similarly used drugs; HB 140 is an attempt to conform state schedules to federal schedules. She acknowledged, however, that there are a lot of other drugs - the "codeines" and the "morphines" - that are being used for the same purpose as GHB. REPRESENTATIVE MEYER mentioned that he would like to see the use of other drugs such as rohypnol included in HB 140. Number 1084 MS. WRIGHT noted that Legislative Legal and Research Services has already cautioned her against adding another drug to HB 140; one drug at a time, one issue at a time, was the advice given. REPRESENTATIVE MEYER reiterated that he would like see HB 140 address more than just GHB. REPRESENTATIVE BERKOWITZ mentioned that issues regarding various "date rape" drugs and conforming state drug schedules to federal drug schedules have already been discussed by the House Judiciary Standing Committee in previous years. CHAIR ROKEBERG confirmed that the committee is very familiar with these issues. MS. WRIGHT recounted that last fall at "Ninilchik" high school, the ingredients for GHB were stolen, but unfortunately, when the kids that stole the ingredients were caught, nothing could be done because the kids had not yet combined them to create the drug itself. REPRESENTATIVE MEYER pondered whether the legislation pertaining to aggravating factors would have the same effect as HB 140, and, thus, could be used instead. MS. WRIGHT acknowledged Representative Meyer's point. She explained that when HB 140 was originally drafted, that issue had not been considered; at that time, the sponsor had been made aware of the problem with GHB at the hospital and at "Nikiski High", and HB 140 in its present form was the result. She offered that if HB 140 could be adopted this year, something further could be done next year to address [other drugs]. REPRESENTATIVE MEYER again noted that HB 140 addresses possession of GHB, not just the use of it. CHAIR ROKEBERG referred to the analysis accompanying the fiscal note, which said HB 140 "would move the penalty up from either a Class B felony or Class C felony to a Class A felony or an unclassified felony." He remarked that this could result in putting "somebody away for life" for using GHB. He asked what the rationale is for such [a penalty]. He also asked about the lengths of sentences under current penalties versus under the proposed penalty. Number 0839 MS. WRIGHT said that she did not know "what the current years are," nor what the "discretion of a judge would be." She offered instead: There is no other use for this drug except to incapacitate a person for one reason or another, and usually those reasons are [of] no good avail to the victim, and the victim oftentimes does not recall what has happened to him or her during the time she's been under the influence of that drug. REPRESENTATIVE BERKOWITZ said that he understood the severity of the problem. He noted, however, that according to [Issue No. 243] of the National Institute of Justice Journal [published by the National Institute of Justice], "school-based surveys seem to suggest that rohypnol and GHB are consumed voluntarily, perhaps increasingly so." There is a difference between voluntary consumption of a drug and using it to victimize somebody, he remarked. MS. WRIGHT agreed, but remarked, "putting a Coca Cola down at a party and having somebody put that drug in your drink, how do you ... determine whether someone takes that drug voluntarily or ... it was given to them in a malicious manner." The sad aspect of GHB, she said, is that no one remembers, afterward, what actually happened: "You don't remember when you've taken it, you don't remember how you've gotten it." This is not a drug that is generally used voluntarily. When this drug surfaces, 98.9 percent of the time it is involved in rape cases, sometimes of girls as young as 7 or 8 years old. REPRESENTATIVE JAMES asked, "If it's taken voluntarily, that makes it okay?" Number 0623 CHAIR ROKEBERG said no, it doesn't, not if "we put it on the schedule." In response to a question, Chair Rokeberg posited that if both HB 140 and HB 297, which pertains to aggravating factors, pass, a person who uses GHB to facilitate a rape would be subject to the penalties pertaining to rape, to use of GHB, and to possession of GHB. REPRESENTATIVE BERKOWITZ concurred that under HB 140, even taking GHB voluntarily could subject someone to a long prison sentence. REPRESENTATIVE COGHILL surmised that the class of felony a person was subject to would depend on the "type of use." MS. WRIGHT agreed, indicating that it would depend on a combination of "type of use" and "a judgment call by the prosecutor." She reiterated that one of the most important aspects of HB 140 is that state drug schedules would come in line with the federal drug schedules, which say that consumption of GHB in any form, without a doctor's prescription, is illegal. She remarked that it doesn't make sense for anyone to take GHB voluntarily and then turn himself/herself in for prosecution. REPRESENTATIVE COGHILL acknowledged that "it's very difficult to prove after the fact." MS. WRIGHT reiterated that currently, no test exists that could immediately show the presence of GHB; serum has to be drawn and sent outside [the state] to determine if GHB is present. She added that GHB is metabolized very fast and therefore tests must be conducted within five or six hours of ingestion; usually by the time a person who has been drugged wakes up, that time frame has elapsed. Number 0357 DEB BLIZZARD, R.N., testified via teleconference, noting that she is a certified emergency nurse and sexual-assault nurse- examiner. She said that in the 22 years she has been a nurse, she has never seen a drug that scares her as much as GHB. She mentioned that GHB is very easily made, with some of the ingredients being found in Drano, floor strippers, and acetone. The compounds, when mixed together, have "a ph of 8 to 9," which gets kids high, just as if they'd had five or six shots of alcohol, she explained. One of the problems, however, is that GHB affects everyone differently; when used in sexual assault, it incapacitates a person and leaves him/her with no memory of what has happened. MS. BLIZZARD noted that in "doing classes" for ENCARE emergency nurses (Emergency Nurses Cancelling Alcohol Related Emergencies), the EMS symposium, and the critical nurses symposium, she has come to realize that the use of GHB is a statewide problem. She relayed that in her area, at least one or two people a week come in with GHB overdoses." She explained that in February of 2000, President Clinton passed legislation making GHB a schedule [IA] drug and named [the legislation] after two girls who died after having GHB poured into their drinks. REPRESENTATIVE MEYER asked how [GHB] differs from other "date rape" drugs. MS. BLIZZARD explained that GHB occurs naturally in the human body, and this makes it very difficult to detect. In addition, GHB can be expelled through the respiratory and urinary tracts within three to four hours, whereas with rohypnol, it takes about 72 hours to expel. She noted that in order to test for GHB, specimens must be sent outside of Alaska and the results are not available for three to four days. In response to a question, she said that some kids use GHB "just to get high"; again, because GHB affects people differently, although one shot might simply get one person high, another person might become incapacitated, and yet another person could die due to respiratory depression. Number 0057 JULIA P. GRIMES, Lieutenant, Division of Alaska State Troopers, Department of Public Safety (DPS), testified via teleconference and said that in addition to the date rape problem, the DPS recognizes that GHB is extremely dangerous and is being used voluntarily by many teenagers and even some younger children. TAPE 02-55, SIDE A Number 0001 LIEUTENANT GRIMES relayed that club parties, rave parties, and non-alcoholic dance clubs have appeared in Anchorage and other parts of the state; these places/events are the perfect place for this type of drug: it is colorless, it can be easily carried in an innocent-looking container, and it is actually sold in these environments. It is sold by the capsule or by the dose, and, as indicated by Ms. Blizzard, it is a very dangerous drug. Gamma-Hydroxybutyrate is a central nervous system depressant, and has a synergistic affect when mixed with alcohol, marijuana, or any other type of depressant; GHB has caused many deaths nationwide, and the number of these deaths is increasing each year. Thus there are two sides to GHB use: one, it is being used to facilitate sexual assault, and, two, it is a dangerous substance to begin with. She concluded by saying that the DPS does not have a problem with moving GHB from schedule IVA to schedule IA. CHAIR ROKEBERG asked whether, when charging an individual, the DPS makes a distinction between schedule IVA drugs and schedule IA drugs. "Does it have to be under misconduct involving a controlled substance," he also asked. LIEUTENANT GRIMES said that under the misconduct involving controlled substance statutes, each schedule of drug is broken up statutorily, with the more dangerous drug being categorized in certain statutes with the higher penalty. The schedule IA drugs, which are considered the most dangerous, are the opiates, heroin, morphine, Dilaudud, and natural and synthetic opiates, to name a few. The schedules then go up in number - schedule IIA, IIIA, IVA, VA, and VIA - but down in dangerousness. Depending on the substance that a person is found to be in possession of or delivering or manufacturing, the DPS charges according to wherever that substance lies in statute. She confirmed that the DPS uses misconduct involving a controlled substance as the basis for the charge, in whatever degree is appropriate for the substance [and amount] in question. Number 0327 LIEUTENANT GRIMES noted, however, that the DPS does not often charge people with possession based on that possession's "being in their blood"; possession charges usually stem from a person being caught with a substance in his/her pocket, for example. The former is rare; it has happened, and it can be prosecuted, but it is rarely done, since law enforcement has only the blood test as evidence. In response to a question, she indicated that the degree of the charge depends upon several factors, including the amount of the substance, the age of those involved, the location involved, and what activity is actually occurring, whether it is possession, delivering, manufacturing, or possession with the intent to manufacture or deliver. Currently, for example if a person is simply found to be in possession of a small amount of a schedule IVA drug, he/she is generally charged with misconduct involving a controlled substance in the fifth degree, which is a class A misdemeanor. She also indicated that misconduct involving a schedule IVA drug could be charged as fourth and third degree crimes, depending upon the aforementioned factors. CHAIR ROKEBERG asked whether GHB is usually measured in grams, and whether it is usually in liquid form. LIEUTENANT GRIMES surmised that GHB could probably be measured in either grams or ounces. She also surmised that with passage of HB 140, possession of any amount of GHB would become a felony. CHAIR ROKEBERG noted that depending upon the circumstances, misconduct involving a schedule IVA drug could be charged as an unclassified felony. He asked what the minimum sentence is for an unclassified felony. LIEUTENANT GRIMES said she believes the minimum sentence is ten years, but acknowledged that she may be incorrect. CHAIR ROKEBERG asked whether the Alaska State Troopers have prosecuted any "GHB cases." LIEUTENANT GRIMES said they have not had any cases in which people were in possession of GHB, although there might be some sexual assault cases in which GHB was used or suspected of being used. She remarked that GHB is an elusive type of drug in that by the time "we ... find out about it, it's possible that it's either out of the person's system or we don't have a legal way to obtain a sample." Number 0660 LINDA WILSON, Deputy Director, Public Defender Agency (PDA), Department of Administration, testified via teleconference. She said first that the PDA opposes HB 140. She remarked that GHB has been a schedule IVA substance since 1997, and that Alaska is ahead of many other states that have not yet scheduled GHB. She went on to say: When this drug became a schedule [IVA], it joined two other drugs that were added to that schedule around the same time, and those have also been mentioned. One is a 'ruffie' drug [flunitrazapam or rohypnol], and then the other one that came in last year is ketamine hydrochloride. Those three are often grouped together. The penalties for these, for possession and delivery for this particular drug, as it is now, [fit] in with the other drugs currently in schedule IVA. It should remain there. The penalties for simple possession of a small amount of this drug would be [a class] A misdemeanor under the current scheme; it would be misconduct involving a controlled substance in the fifth degree, as mentioned. Depending on the [delivery] - ... whom the delivery is made to, possession with intent to deliver a larger amount, whether it's near a school - it can go up to a [class] B felony currently, as ... with those other two drugs I've mentioned that are grouped together.... There are sort of three primary abuses of this drug, and Ms. Wright ... said she can't imagine that there was any other use for this drug other than to facilitate a sexual assault; I think ... there certainly has been testimony to the contrary to that. This drug is used recreationally; the three primary uses, or abuses, of this drug are by young adults recreationally - at parties, at clubs, in various amounts - to get a high. It's also what's used by bodybuilders; in the past they used and abused this [drug], and it has also been used as a sleep aid and for the treatment of narcolepsy. And the third one, which I think is really the most concerning to the sponsor and to this committee, obviously, is that it can be used to facilitate a sexual assault. Number 0837 MS. WILSON continued: But my concerns with the bill are: ratcheting this up from a schedule [IVA] to a schedule [IA] certainly also [ratchets] up all of the consequences that come with this particular drug and its simple possession, even at its least offensive - and they're all offensive, all of the abuses of this drug are, not to minimize even the small recreational use of it. But yet when you elevate it to a schedule IA, then that ... makes it [be] treated as a felony for any amount that is possessed, so it becomes a [class] C felony - all the way up to an unclassified felony. And the sentence for an unclassified felony is 5 [years] minimum up to 99 years. So we certainly are increasing the penalties significantly. I've heard mention, in the testimony, about [how] this brings us in line with the federal schedule, and that this became a schedule [IA] controlled substance in 2000. That is correct. However, our state doesn't follow the federal schedule, and we haven't followed it for over 20 years, and I think its recognized in the statute that we don't follow, strictly, the federal schedule. An example of that is marijuana; [it] is a schedule [IA] under the federal schedules. Many, many drugs are schedule [IA] under the federal code. We have classified drugs a little differently in Alaska. The other drugs that are in schedule IVA are more similar to this drug, and it should stay where it is. To address the concern, though, of its abuse and its use to facilitate a sexual assault, ... there's ... Representative Meyer's bill that's pending - ... the aggravator for using a controlled substance to facilitate a sexual assault. Certainly that is a good way to address the concerns in regard to the abuse of this drug for that purpose. So, in conclusion, we are opposed to this bill because it's not proportionate in relation to the other drugs that are similar to it that are in schedule [IVA]; ... the penalties become too severe for the ... least offensive of the abuses of it. It may be appropriate to want to increase the penalty for the delivery to somebody at a young age; that's understandable. But do we also want to then make [it] a felony for a young person who has some in their pocket [and] they wanted to try it out - now they're going to have a felony? Number 0979 MS. WILSON said: ... From the testimony from Lieutenant Grimes, there haven't been any prosecutions. So I'm not sure that even though on the [Kenai] Peninsula they're seeing people come into the emergency room with overdoses, I'm not sure we're at a point where this needs to be jumped up to a schedule [IA]. And there are other ways ... [of] dealing with the concerns for using it as a sexual assault facilitator, ... [such as] that aggravator, which I think is very likely to pass; I believe the bill is currently in Senate Rules. So with that, I'm certainly available to answer any questions. I did pull some information off of the computer, and I did find out that there was information from 2000 that showed that 60 percent of the users of GHB were 25 years or older, and that well over half of them were using it for recreational use. So, I think you have to consider that this is not just being used to facilitate sexual assault. It's certainly being used inappropriately by everybody, but it may be used in small doses - where there is not a complete loss of memory, but inappropriately used nonetheless - recreationally. CHAIR ROKEBERG closed public testimony on HB 140. REPRESENTATIVE MEYER said that in the instances where GHB is used in sexual assault, he thinks it would be covered under [HB 297]. He offered that if GHB is being used as a recreational drug, it should be looked at in the same light as other recreational drugs. REPRESENTATIVE COGHILL opined that at this time, lacking further information, it would be "overshooting" to make [possession of GHB] a felony in the same fashion as for heroin. REPRESENTATIVE JAMES referred to and read portions of the aforementioned article in the National Institute of Justice Journal. She commented on the seeming lack of actual cases/prosecutions, and said that she supports the use of an aggravator, surmising that perhaps through that legislation, more statistics pertaining to GHB-facilitated sexual assault will come to light. She posited that there is a problem, but said she didn't know whether [adoption of HB 140] is the way to fix it. Number 1287 MS. WRIGHT said: There have, in fact, been prosecutions in the state of Alaska. What winds up happening is, they get wrapped up and dealt down. So, as far as maybe Lieutenant Grimes being aware that someone's been arrested and prosecuted for it, that might not be something that she is aware of. There have, in fact, been deaths. And that's one of the things that we're concerned with. A kid carrying this drug in their pocket for the first time may not know that it's similar to cocaine: it only takes once - it only takes once - and it can kill you - it can stop your breathing.... Respiratory arrest has not occurred in Alaska, but it has occurred nationwide. It doesn't take twice. CHAIR ROKEBERG suggested that the committee see whether [HB 297] becomes law, before acting on HB 140. He said that although [GHB abuse] is a very serious issue, it may not warrant a "threefold jump" from schedule IVA to schedule IA. He announced that HB 140 would be held over.
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